Brown v. State

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MATTHEW NICHOLAS BROWN, Petitioner,

v.

STATE OF ARIZONA, Respondent.

No. 1 CA-SA 26-0224
FILED 09-17-2026

Petition for Special Action from the Superior Court in Mohave County
No. CR-2022-00500
The Honorable Lee Frank Jantzen, Judge, Retired

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Matthew Nicholas Brown, Douglas
Petitioner

Mohave County Attorney’s Office, Kingman
By Amanda Claerhout
Counsel for Respondent

BROWN v. STATE
Opinion of the Court

OPINION

Presiding Judge David B. Gass1 delivered the opinion of the Court, in which
Judge Anni Hill Foster and Judge D. Andrew Gaona joined.

G A S S, Judge:

¶1 Arizona Rule of Criminal Procedure 33.6(b)(1) says that after
a defendant files a notice requesting post-conviction relief “but before the
filing of a petition, and upon a showing of substantial need for material or
information to prepare the defendant’s case, the court may enter an order
allowing discovery.” Brown moved to depose the State’s sexual abuse nurse
examiner under that Rule. The superior court denied his motion, finding
Brown had no right to discovery until after he filed a post-conviction relief
petition. Brown seeks special action review of that ruling.

¶2 Because the plain language of Rule 33.6(b)(1)—as adopted
effective January 1, 2020—allows for pre-petition discovery, the court
accepts special action jurisdiction, grants relief, vacates the denial, and
remands for the superior court to determine whether Brown has shown a
substantial need for the requested discovery to prepare his post-conviction
relief petition.

FACTS AND PROCEDURAL HISTORY

¶3 After his 2022 indictment, Brown pled guilty and was
sentenced on three criminal counts: child abuse, sexual conduct with a
minor, and aggravated assault. In March 2026, Brown filed a notice for post-

1 Judge David B. Gass was a sitting member of this court when the matter

was assigned to this panel of the court. He retired effective June 30, 2026. In
accordance with the authority granted by Article VI, Section 3, of the
Arizona Constitution, and under A.R.S. § 12-145, the Chief Justice of the
Arizona Supreme Court has designated Judge David B. Gass as a judge pro
tempore in the Court of Appeals for the purpose of participating in the
resolution of cases assigned to this panel during his term in office and for
the duration of Administrative Order 2026-87.

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BROWN v. STATE
Opinion of the Court

conviction relief under Rule 33.4,2 but he did not file a petition for post-
conviction relief. Instead, he filed a “Motion for Discovery and to
Depose/Examine [the State’s sexual abuse nurse examiner]” under Rule
33.6(b)(1).

¶4 The State objected, arguing Brown had no right to pre-petition
discovery when seeking post-conviction relief under Rule 32. But that Rule,
which applies to post-conviction relief proceedings after a trial, does not
apply here. The State also cited Canion v. Cole, 210 Ariz. 598, 599 ¶ 7 (2005),
which interpreted a version of Rule 32 from before the Supreme Court
adopted a new version of that Rule effective January 1, 2020. Even so, the
superior court agreed and denied Brown’s motion, saying Rule 32 did not
contemplate pre-petition discovery and Brown had not filed such a petition.
Neither the State nor the superior court addressed Brown’s rights as a
pleading defendant under Rule 33, which applies to post-conviction relief
proceedings after a defendant pleads.

¶5 Brown timely filed this special action, arguing the superior
court abused its discretion when it denied his motion because the superior
court did not consider the current version of the Rule, which the Arizona
Supreme Court adopted effective January 1, 2020. The court agrees.

JURISDICTION

¶6 Though “highly discretionary,” special action jurisdiction is
appropriate when no “equally plain, speedy, and adequate remedy by
appeal exists.” Prosise v. Kottke, 249 Ariz. 75, 77 ¶ 10 (App. 2020) (cleaned
up). Because special action review is the only way Brown may obtain relief
from the superior court’s order denying his discovery request, the court
exercises its discretion and accepts special action jurisdiction. Id.; Ariz. R.P.
Spec. Act. 2(b)(2).

DISCUSSION

¶7 The court reviews the superior court’s denial of Brown’s
motion for discovery for an abuse of discretion. State v. Gutierrez, 229 Ariz.

2 Though Brown did not include a copy of his Rule 33.4 notice in his special

action petition, the court takes judicial notice of the superior court’s records
indicating Brown complied with Rule 33.4. See State v. McGuire, 124 Ariz.
64, 66 (App. 1978) (“An appellate court can take judicial notice of any matter
of which the [superior] court may take judicial notice, even if the [superior]
court was never asked to do so.”).

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BROWN v. STATE
Opinion of the Court

573, 577 ¶ 19 (2012). But it reviews de novo the interpretation of Rule
33.6(b)(1). See State v. Mendoza, 248 Ariz. 6, 14–15 ¶ 12 (App. 2019). “The
[superior] court abuses its discretion when it makes an error of law in
reaching a discretionary conclusion or when the record, viewed in the light
most favorable to upholding the [superior] court’s decision, is devoid of
competent evidence to support the decision.” Michaelson v. Garr, 234 Ariz.
542, 544 ¶ 5 (App. 2014) (quotation omitted).

¶8 Historically, the Rules included no express provision for
discovery in post-conviction proceedings. Canion, 210 Ariz. at 599 ¶ 7. In
applying the Rules as they stood two decades ago, the Arizona Supreme
Court confirmed that the Rules permitted discovery only after a defendant
filed a petition for post-conviction relief. Id. That Rule-based outcome
changed in 2020, when the Arizona Supreme Court adopted Rules 32.6 and
33.6, both of which expressly allow discovery in post-conviction
proceedings. Order Abrogating Current Rule 32 of the Arizona Rules of
Criminal Procedure and Adopting New Rule 32 and Rule 33 and Related
Provisions (2020) (adopting new Rule 32 and Rule 33 in R-19-0012 effective
January 1, 2020). The new Rules divide post-conviction relief proceedings
into two Rules—Rule 32 (following conviction at trial) and Rule 33
(following a guilty plea). The changes allow a defendant to seek discovery
both before and after filing a petition for post-conviction relief and establish
different standards for obtaining discovery based on whether a petition for
post-conviction relief has been filed. Ariz. R. Crim. P. 33.6(b)(1)–(2).

¶9 Under Rule 33.6(b)(1), a defendant seeking discovery
following a guilty plea but before filing a petition (like Brown did here)
must do two things: (1) file a notice requesting post-conviction relief under
Rule 33.4 and (2) show a “substantial need for material or information.”
Rule 32 includes a comparable provision addressing when a defendant may
seek post-conviction relief after a trial. See Ariz. R. Crim. P. 32.4, 32.6(b)(1)–
(2). A defendant must strictly comply with the applicable Rule to be eligible
for post-conviction relief. State v. Evans, 252 Ariz. 590, 595 ¶ 7 (App. 2022).

¶10 “When the Arizona Supreme Court modifies the language of
a rule, a presumption exists that a change in the existing rule was intended.”
In re Victoria K., 198 Ariz. 527, 532 ¶ 25 (App. 2000) (citing State v. Averyt, 179 Ariz. 123, 128 (App. 1994), which applied an analogous presumption to
legislative amendments to statutes). The court must apply that
presumption if “the language of the amended rule compels the conclusion.”
Id. The 2020 changes compel the conclusion that the Arizona Supreme
Court intended to abrogate Canion with their adoption.

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BROWN v. STATE
Opinion of the Court

¶11 In the superior court, the State did not argue that Brown failed
to comply with Rule 33.4’s notice requirement. And the State did not argue
Brown did not show substantial need under Rule 33.6(b)(1). Instead, the
State argued the Rules precluded discovery until after Brown filed a post-
conviction relief petition. The superior court denied Brown’s motion on that
ground. That ruling was error. Rule 33.6(b)’s plain language dictates a
different analysis. Ariz. R. Crim. P. 33.6(b)(1)–(2). Because Brown filed a
Rule 33.4 notice, the superior court must allow Brown the opportunity to
show a “substantial need” for the discovery he requests and grant the
motion if Brown makes that showing. Ariz. R. Crim. P. 33.6(b)(1); see
Gutierrez, 229 Ariz. at 577 ¶ 19.

CONCLUSION

¶12 The court vacates the denial and remands to the superior
court to determine whether Brown has shown a substantial need for the
requested discovery to prepare his post-conviction relief petition.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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